Martowska v. White , 183 Conn. App. 770 ( 2018 )

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MATTHEW M. MARTOWSKA v. KATHRYN R. WHITE
(AC 39970)
Alvord, Sheldon and Bear, Js.
Syllabus
The plaintiff filed an application seeking joint custody of the parties’ minor
child. After the trial court rendered judgment granting joint legal custody
to the parties and visitation rights to the plaintiff, the plaintiff filed a
motion seeking enforcement of certain visitation orders contained in
the court’s decision. As part of an agreement to resolve that motion,
the parties agreed to undergo a psychological evaluation, which was filed
with the court. Thereafter, the plaintiff sought a copy of the evaluation
to use in an unrelated proceeding in Massachusetts. Subsequently, the
court issued an order permitting the plaintiff to review the evaluation
in the clerk’s office but did not allow the plaintiff to have a copy of the
evaluation or use its information in any other action. The plaintiff then
appealed to this court, claiming, inter alia, that the court erred in
restricting his ability to review the psychological evaluation and that
the restriction violated his due process and equal protection rights. Held
that this court lacked jurisdiction over the plaintiff’s appeal, as the
postjudgment discovery order from which the plaintiff appealed was
not a final judgment; it is well established that interlocutory rulings on
motions related to discovery generally are not immediately appealable,
and the trial court’s order did not satisfy either of the prongs of the
test set forth in State v. Curcio (191 Conn. 27) that governs when an
interlocutory order is appealable, as the plaintiff sought the release of
a copy of a document prepared in the context of a custody action that
no longer was pending and, thus, the resolution of the issue did not
constitute a separate and distinct proceeding, and no presently existing
right of the plaintiff had been concluded by the court’s order prohibiting
release of a copy of the psychological evaluation.
Argued May 23—officially released July 31, 2018
Procedural History
Application for joint custody of the parties’ minor
child, and for other relief, brought to the Superior Court
in the judicial district of Hartford and tried to the court,
Epstein, J.; judgment granting, inter alia, joint legal
custody to the parties and visitation rights to the plain-
tiff; thereafter, the parties filed a psychological evalua-
tion with the court; subsequently, the court, Suarez, J.,
ordered, inter alia, that the plaintiff could review but
not obtain a copy of the psychological evaluation, and
the plaintiff appealed to this court. Appeal dismissed.
Matthew M. Martowska, self-represented, the appel-
lant (plaintiff).
Kerry A. Tarpey, for the appellee (defendant).
Opinion
PER CURIAM. The plaintiff, Matthew M. Martowska,
appeals from the 2016 postjudgment order of the trial
court that, although allowing the plaintiff to inspect a
psychological evaluation performed in 2012 as part of a
then pending proceeding regarding the parties’ custody/
visitation matter, prevented the plaintiff from obtaining
a copy of the evaluation. On appeal, the plaintiff raises
a number of claims regarding the court’s order prohib-
iting the release of a copy of the 2012 evaluation.1 We
conclude that the postjudgment order at issue is not a
final judgment. Accordingly, we dismiss this appeal for
lack of subject matter jurisdiction.
Many of the underlying facts and lengthy procedural
history of this case are not relevant to the issues on
appeal. Accordingly, we provide only the facts and his-
tory pertinent to our discussion, some of which are set
forth in this court’s decision in Martowska v. White,
149 Conn. App. 314, 87 A.3d 1201 (2014). The plaintiff
and the defendant, Kathryn R. White, are the parents of
one minor child. The plaintiff filed a custody/visitation
application in October, 2005. Id., 316. In 2007, the parties
sought final custody and visitation orders, and the court
issued a memorandum of decision on October 9, 2007.
Id. On January 13, 2012, the plaintiff filed a motion
seeking enforcement of visitation orders contained in
the court’s October, 2007 decision. Id., 317. As part of
a February 7, 2012 agreement resolving that motion,
the parties agreed to undergo a psychological evalua-
tion ‘‘for custodial/parenting plan purposes.’’ Id., 317–
18. Both parties submitted to a psychological
evaluation, and the evaluation was filed with the court.
Id., 318 n.6. The defendant filed a motion to release the
psychological evaluation, which the court granted over
the plaintiff’s objection on January 16, 2013. Id., 319.
The court order was stayed pending an appeal to this
court. Id. In a decision released April 8, 2014, this court
affirmed the trial court’s order releasing the psychologi-
cal evaluation, and stated, in a footnote, that ‘‘[a]fter
today, the evaluation can be released.’’ Id., 324 n.14.
Between May, 2014, and December, 2016, no motions
were filed in this custody/visitation matter in the trial
court. The plaintiff and his family members did, how-
ever, engage in a series of communications with judges
and staff of the Superior Court. In November and
December, 2014, the plaintiff sent two letters to Delinda
Walden of the Hartford Superior Court, seeking confir-
mation of the following: the plaintiff’s mother was
denied a copy of the psychological evaluation, neither
party may obtain a copy of the evaluation, no third
parties may access the evaluation, and Walden is unable
to provide a copy of the evaluation for use in a different
case pending in Massachusetts. On September 11, 2015,
the plaintiff again wrote to Walden inquiring whether
he could obtain a copy of the psychological evaluation,
and whether he could share the copy with Dr. Denise
Mumley in connection with an order of a Massachusetts
court. The plaintiff wrote that the psychological evalua-
tion would ‘‘be used in a different case unrelated to
[the defendant]’’ and further stated that the evaluation
‘‘will be shared initially with Dr. Mumley (as part of
my evaluation) and thereafter with others.’’ (Emphasis
added.) Also on September 11, 2015, the plaintiff’s
mother sent an e-mail to Walden, inquiring whether the
plaintiff would be permitted to obtain a copy of the
evaluation. Walden responded in part that Judge Suarez
had informed her that ‘‘we can only release the evalua-
tion for purposes involving the case here – it is not
available for any other purpose. Otherwise [the plain-
tiff] will need to file a motion.’’
On October 12, 2016, the plaintiff appeared at the
Superior Court to review the 2012 psychological evalua-
tion. According to the plaintiff, he was denied access
to the evaluation. The following day, the plaintiff sent
an e-mail to Kevin Diadomo of the Hartford Superior
Court, in which he represented that his inquiry was ‘‘for
the purpose of potentially bringing forward a motion
involving the case here in CT, but I needed to review the
[evaluation] before I could decide my plan of action.’’
He requested that Diadomo share the e-mail with Judge
Suarez. The plaintiff also sent letters to a number of
judges of the Superior Court, including Judge Suarez.
The court, Suarez, J., then scheduled a status confer-
ence in the matter for December 6, 2016. Following the
status conference, the court issued an order providing
that ‘‘[t]he plaintiff may review the psychological evalu-
ation dated November 23, 2012, in the clerk’s office.
The plaintiff is reminded that the information cannot
be used in any other action. He was reminded that he
cannot have copies of any of the information.’’2 It is
from this order that the plaintiff appeals.
‘‘Before examining the plaintiff’s claims on appeal,
we must first determine whether we have jurisdiction.
It is axiomatic that the jurisdiction of this court is
restricted to appeals from judgments that are final. Gen-
eral Statutes §§ 51-197a and 52-263; Practice Book § 61-
1 . . . . Thus, as a general matter, an interlocutory
ruling may not be appealed pending the final disposition
of a case.’’ (Citations omitted; internal quotation marks
omitted.) Parrotta v. Parrotta, 119 Conn. App. 472, 475–
76, 988 A.2d 383 (2010).
The plaintiff appeals from a discovery order prohib-
iting release of a copy of the psychological evaluation.
‘‘It is well established in our case law that interlocutory
rulings on motions related to discovery generally are
not immediately appealable.’’ Cunniffe v. Cunniffe, 150
Conn. App. 419, 433, 91 A.3d 497, cert. denied, 314 Conn.
935, 102 A.3d 1112 (2014). As an interlocutory order,
this order would be immediately appealable only if it
met at least one prong of the two prong test articulated
by our Supreme Court in State v. Curcio, 191 Conn. 27,
31, 463 A.2d 566 (1983). Under Curcio, ‘‘[a]n otherwise
interlocutory order is appealable in two circumstances:
(1) where the order or action terminates a separate and
distinct proceeding, or (2) where the order or action
so concludes the rights of the parties that further pro-
ceedings cannot affect them.’’ Id.; see also Radzik v.
Connecticut Children’s Medical Center, 317 Conn. 313,
318, 118 A.3d 526 (2015) (‘‘Discovery orders generally
do not satisfy either Curcio exception, absent extraordi-
nary circumstances. See, e.g., Woodbury Knoll, LLC v.
Shipman & Goodwin, LLP, 305 Conn. 750, 757–58, 48
A.3d 16 (2012); Abreu v. Leone, 291 Conn. 332, 344, 968
A.2d 385 (2009).’’).
Our Supreme Court has elaborated on the application
of the final judgment doctrine in the context of discov-
ery disputes, recognizing the fact specific nature of such
disputes. Incardona v. Roer, 309 Conn. 754, 760, 73
A.3d 686 (2013). ‘‘First, the court’s focus in determining
whether there is a final judgment is on the order immedi-
ately appealed, not [on] the underlying action that
prompted the discovery dispute. . . . Second,
determining whether an otherwise nonappealable dis-
covery order may be appealed is a fact specific inquiry,
and the court should treat each appeal accordingly.
. . . Third, although the appellate final judgment rule
is based partly on the policy against piecemeal appeals
and the conservation of judicial resources . . . there
[may be] a counterbalancing factor that militates
against requiring a party to be held in contempt in order
to bring an appeal from a discovery order.’’ (Citations
omitted; emphasis omitted; footnote omitted; internal
quotation marks omitted.) Id., 760–61.
With these considerations in mind, we conclude that
the trial court’s order in the present case does not satisfy
either of the exceptions set forth in Curcio. The first
prong of Curcio ‘‘requires that the order being appealed
from be severable from the central cause of action so
that the main action can proceed independent of the
ancillary proceeding. . . . If the interlocutory ruling is
merely a step along the road to final judgment then it
does not satisfy the first prong of Curcio.’’ (Internal
quotation marks omitted.) McGuinness v. McGuinness,
155 Conn. App. 273, 276–77, 108 A.3d 1181 (2015).
In the present case, the record reflects that the issue
at hand involved the plaintiff seeking release of a copy
of a document prepared in the context of a custody/
visitation action, which no longer was pending. The
resolution of that issue does not constitute a separate
and distinct proceeding. In fact, the order arose not
out of a separate motion regarding the psychological
evaluation but rather out of multiple communications
from the plaintiff to the court and its staff, years after
the end of the proceeding for which the evaluation had
been ordered. No motions were pending in the case at
the time of the multiple communications. The plaintiff
represented during oral argument before this court that
he sought release of a copy of the evaluation in order
to determine what motions, if any, he should file. This
court, however, has previously recognized in the discov-
ery context that ‘‘[a] party to a pending case does not
institute a separate and distinct proceeding merely by
filing a petition for discovery or other relief that will
be helpful in the preparation and prosecution of that
case.’’ (Internal quotation marks omitted.) Radzik v.
Connecticut Children’s Medical Center, 145 Conn. App.
668, 680, 77 A.3d 823 (2013) (concluding that defen-
dants’ appeal from order granting plaintiff’s motion to
compel electronic discovery did not satisfy first prong
of Curcio), aff’d, 317 Conn. 313, 118 A.3d 526 (2015).
‘‘Satisfaction of the second prong of the Curcio test
requires the parties seeking to appeal to establish that
the trial court’s order threatens the preservation of a
right already secured to them and that that right will
be irretrievably lost and the [party] irreparably harmed
unless they may immediately appeal. . . . An essential
predicate to the applicability of this prong is the identifi-
cation of jeopardy to [either] a statutory or constitu-
tional right that the interlocutory appeal seeks to
vindicate.’’ (Citation omitted; internal quotation marks
omitted.) Cunniffe v. Cunniffe, supra, 150 Conn. App.
431–32. No presently existing right of the plaintiff has
been concluded by the court’s order prohibiting release
of a copy of the 2012 psychological evaluation. Thus,
under Curcio, there is no final judgment and no basis
on which to appeal the court’s ruling. As a result, we
lack jurisdiction over this appeal.
The appeal is dismissed.
1
Specifically, the plaintiff claims that: (1) the court erred in restricting
his ability to review the psychological evaluation, (2) such restriction vio-
lated his constitutional rights to due process and equal protection, (3) he
was improperly denied access to the evaluation on the basis of an ‘‘informal
notation on file’’, (4) the court improperly called a status conference in the
absence of any pending motions in the case, and (5) the plaintiff’s letters to
the judges of the Superior Court did not constitute ex parte communications.
2
The plaintiff filed a motion for articulation dated February 3, 2017, which
was denied. The plaintiff thereafter filed a motion for review of the denial
of the motion for articulation. This court granted review but denied the
relief requested.